ADDITIONAL COMMENTS BY LIBERAL SENATORS
1.1
Liberal senators do not agree with certain findings of the majority
members in the committee's report into the provisions of the Access to Justice
(Civil Litigation Reforms) Amendment Bill 2009 (Bill).
Case management
The duty to act consistently and
parties' lawyers
1.2
In relation to proposed subsection 37N(2), the Law Council of Australia
warned that proposed paragraph (b) does not strike an appropriate balance
between the application of the overarching purpose and its public objectives,
and the individual rights and objectives of a party. Instead, the Law Council
of Australia suggested that proposed subsection 37N(2) be qualified with the
insertion of the phrase, 'subject to the instructions of the client', where
appropriate.[1]
1.3
Liberal senators note that other submissions and evidence – namely, the
Federal Court of Australia and NSW Law Society, Young Lawyers – acknowledge the
Law Council of Australia's concerns, and also that, in at least this regard,
the Bill is not consistent with comparable provisions in other jurisdictions
(for example, sections 56 & 57 of the Civil Procedure Act 2005
(NSW).
1.4
The majority members of the committee urge the Attorney General's
Department to further examine and consider the relevant provisions of
state/territory legislation however, Liberal senators consider this response
insufficient.
Recommendation 1
1.5 Liberal senators recommend that proposed subsection 37N(2) be amended to
recognise that lawyers' obligations under proposed section 37N(2) are subject
to the instructions of the client.
Practice and procedural directions
1.6
Proposed paragraph 37P(3)(c) will give the Federal Court discretion to
make directions limiting the number of witnesses who may be called to give
evidence (or the number of documents that may be tendered in evidence). The Law
Council of Australia described the proposed paragraph as 'undesirable', persuasively
arguing that it would give the Federal Court of Australia an unjustifiable
plenary power.[2]
It suggested that:
a power such as that proposed in s37P(3)(c) might better be
expressed as one that can only be exercised with the consent of the parties; or
there be no such power, but there be provision for cost
consequences if a party unnecessarily prolongs a hearing by leading patently
unnecessary evidence.[3]
1.7
Liberal senators note a recent decision of the Full Court in Hospitality
Group Pty Ltd v Australian Rugby Union Ltd which lends support to the Law
Council of Australia's arguments,[4]
and consider that the Law Council of Australia 's proposals are meritorious.
Recommendation 2
1.8 Liberal senators recommend that proposed paragraph 37P(3)(c) be deleted
or alternately, paragraph (c) be amended so that the provision commences with
the words, 'With the consent of the parties'.
Judicial responsibilities
1.9
The Federal Court of Australia, one of three federal courts affected by
the Bill, told the committee:
We did not seek those [Schedule 3] provisions, we did not ask
for them and we do not think they are necessary.[5]
1.10
Liberal senators refer in particular to Schedule 3 items 3, 10 and 12 of
the Bill, which enable the head judicial officer to temporarily restrict a
judge or federal magistrate to non-sitting duties in the Federal Court of
Australia, Family Court of Australia, or Federal Magistrates Court of
Australia.
1.11
The Law Council of Australia bluntly stated:
The Law Council would not support an amendment that
sacrifices judicial independence for administrative convenience, and
potentially amounts to interference in the exercise of Chapter III judicial
power or compromises the independence of the judiciary. [6]
1.12
Liberal senators cannot put the case any better, other than to add that
the proposed plenary provisions were unnecessary, unjustifiable and unworthy of
Liberal senators' support.
Recommendation 3
1.13
Liberal senators recommend that Schedule 3 items 3, 10 and 12 of the
Bill be reconsidered with a view to the addition of appropriate terms and
conditions circumscribing the proposed power.
Senator
Guy Barnett Senator Mary Jo Fisher
Deputy
Chair
Navigation: Previous Page | Contents | Next Page